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Juana M. v. Arizona Department of Economic Security

Court of Appeals of Arizona, Second Division, Department A

August 13, 2013

JUANA M., Appellant,

Not for Publication Rule 28, Rules of Civil Appellate Procedure

APPEAL FROM THE SUPERIOR COURT OF PINAL COUNTY Cause No. JD200500164R Honorable Kevin D. White, Judge

Harriette P. Levitt Tucson Attorney for Appellant

Thomas C. Horne, Arizona Attorney General By Erika Z. Alfred Tucson Attorneys for Appellee Arizona Department of Economic Security


GARYE L. VÁSQUEZ, Presiding Judge

¶1 Juana M., biological mother of S.R., born in August of 1999, and L.R., born in January of 2009, challenges the juvenile court's order terminating her parental rights to the children on the grounds of mental deficiency and length of time in court-ordered care, pursuant to A.R.S. § 8-533(B)(1) and (B)(8)(c), respectively. Juana also maintains the court abused its discretion in finding termination of her parental rights and adoption of the children was in their best interests. She asserts the Arizona Department of Economic Security (ADES) "failed to provide [her] with necessary services . . . to allow for reunification." We affirm for the reasons stated below.

¶2 When reviewing an appeal from an order terminating a parent's rights, we view the evidence in the light most favorable to sustaining the juvenile court's ruling. Lashonda M. v. Ariz. Dep't of Econ. Sec, 210 Ariz. 77, ¶ 13, 107 P.3d 923, 928 (App. 2005). Thus, "we will accept the juvenile court's findings of fact unless no reasonable evidence supports those findings." Jesus M. v. Ariz. Dep't of Econ. Sec, 203 Ariz. 278, ¶ 4, 53 P.3d 203, 205 (App. 2002). That is, we will not disturb the ruling unless the factual findings are clearly erroneous. Id.

¶3 Viewed in the appropriate light, the evidence presented during the three-day contested severance hearing between December 2012 and January 2013 established that this family, which included four other children—A.R., P.R., M.R., and B.R.—who are not the subject of this appeal and their father Bennigno R., [1] had a lengthy involvement with ADES and Child Protective Services (CPS), a division of ADES. Reports that the children were being neglected and abused and that the parents were abusing drugs and alcohol began in 1998. Juana pled guilty to child neglect in 2004 after then two-year-old A. R. was found at a park by himself. That same year, twelve-year-old P.R. reported she had been molested by her uncle, who subsequently admitted he had molested her. In September 2005, a Pinal County sheriff's deputy found A.R. walking on a highway at 3:00 in the morning in his underwear. They located the child's home, where they found S.R., then six years old, awake and in the care of an uncle, who was unconscious and apparently intoxicated. The CPS investigator reported the home was "in a state of squalor" and the children were filthy. Two other children had been left with the maternal grandmother, whose home was equally filthy and squalid.

¶4 The children were taken into protective custody on September 16, 2005, and ADES filed a dependency petition. At the initial dependency hearing on September 21, Juana submitted the issue of dependency to the court, which adjudicated the children dependent as to her. A variety of services designed to reunify the family were provided to Juana and her family. In August 2006 the court found Juana had complied with the case plan and dismissed the dependency. But in October 2009, ADES again took the children into protective custody and filed a dependency petition after reports that they were being neglected and S.R. and P.R. had been molested by family members.[2] In February 2010, Juana and Bennigno submitted the issue of dependency to the court; again the court adjudicated the children dependent.[3]

¶5 In May 2011, ADES filed a motion to terminate the parents' rights to M.R., S.R., A.R., and L.R. on the grounds of length of time in court-ordered care and mental deficiency.[4] After a four-day severance hearing between October 2011 and February 2012, the court found ADES had established the two grounds existed for terminating the parents' rights and although ADES had made "reasonable efforts to provide [the parents] with rehabilitative services, " the parents had not benefitted from those services and additional services would be futile. But, the court found ADES had not sustained its burden of establishing that termination as to S.R. and L.R. was in the children's best interests "[i]n light of the bond they share[d] with their parents." The court set the matter for a permanency hearing as to S.R. and L.R. Thereafter, ADES continued to provide Juana a plethora of services consistent with the court's May 2012 order regarding reasonable efforts and the permanency plan.

¶6 In August 2012, ADES filed a second motion to terminate the parents' rights as to S.R. and L.R. on the same grounds previously alleged. Evidence presented at the three-day hearing established the foster mother with whom the children had been living intended to relocate to North Carolina and wanted to adopt the children and take them with her. The foster mother testified she could not serve as a placement for the children if the court were to order a guardianship or other solution short of termination of the parents' rights because she needed the permanency of adopting the children and assuming full responsibility for them. Taking the matter under advisement, the court granted ADES's motion and terminated the parents' rights. The court found ADES had sustained its burden of proving the two statutory bases for terminating Juana's parental rights. It also concluded termination was in the children's best interest, entering specific, thorough factual findings upon which it based that conclusion.

¶7Among the juvenile court's findings related to the children's best interests was that there was no "reasonable prospect" that the children could be returned to the parents' care. The court found that even though the children were bonded to their parents, the law did not offer a solution for this situation and on balance, it was in their best interests to terminate the parents' rights so that the foster mother could adopt them, even if they did move to another state. The court found that removing them from their foster mother's care would be more damaging, given how bonded they were to her and the outstanding job she had done addressing the children's special needs and issues. This appeal followed the court's entry of a final order.

¶8 We address the second issue Juana raises on appeal first. She claims ADES did not provide her with the "necessary services to allow for reunification." Apparently referring to the former version of § 8-533(B)(8)(a), which previously was numbered as § 8-533(B)(6)(a), see 1988 Ariz. Sess. Laws, ch. 50, § 1; 2008 Ariz. Sess. Laws, ch. 198 § 2, Juana contends that a parent will not be regarded as having substantially neglected to remedy the circumstances that caused a child to remain out of the home pursuant to court order if the parent has made appreciable, good-faith efforts to comply with the case plan, even if the child has been out of the home for over a year. And, she asserts, after the juvenile court denied ADES's first motion to terminate her rights, it ordered ADES to prepare a new case plan for permanency, but ADES simply provided services similar to those provided under the old case plan.

¶9 ADES has a statutory obligation to make reasonable efforts to reunify the family. Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, ¶ 19, 219 P.3d 296, 303 (App. 2009). In determining that severance is appropriate, the juvenile court must consider the availability of reunification services to the parent and the parent's participation in the services and must find that ADES made a diligent effort to provide those services. A.R.S. § 8-533(B)(8), (D); Christina G. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 231, 235, ¶ 14, 256 P.3d 628, 632 (App. 2011). But, ADES "is not required to provide every conceivable service or to ensure that a parent participates in each service it offers." In re Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz. 348, 353, 884 P.2d 234, 239 (App. 1994). It is only required to provide the parent with the time and opportunity to participate in programs designed to improve the parent's ability to care for their children. Mary Ellen C. v. Ariz. Dep't Econ. Sec., 193 Ariz. 185, ¶ 37, 971 P.2d 1046, 1053 (App. 1999). ADES satisfies its duty when it provides the parent with the type of therapy that offers the most hope for enabling that parent to carry out her ...

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